DAKA VENKATRAMI REDDY Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) The appellant, who is defendant No. 1 in O.S.No. 114/1991 has filed this. Civil Miscellaneous Appeal against the order of the learned Additional Subordinate Judge, Ongole, dated 07-02-1994 in C.F.R. No. 8415/1993 in O.S. No. 114/1991 in dismissing the application of the appellant which was filed under Order 9 Rule 13 C.P.C. to set aside the ex parte decree dated 06-08-1993.

(2.) The brief facts of the case are that the appellant is the 1st defendant in the suit. The said suit was posted to 15-06-1993 for his evidence. The plaintiff's evidence was closed on 24-02-1993 and the matter was adjourned for the evidence of defendants to 10-3-93, 23-3-93 and 12-04-93. Since the defendant did not adduce any evidence, the evidence of the defendant was closed and the matter was posted for arguments on 22-04-1993 and from 22-04-93 the suit was adjourned on payment of costs to 15-06-1993. Since the Officer was on Casual Leave on 15-06-1993, it was adjourned to 29-06-1993. On 29-06-1993, the defendant neither paid the costs nor present himself nor appeared through his Counsel. Therefore, the matter is posted for arguments and the suit was decreed on 06-08-1993. The appellant filed petition under Order 9 Rule 13 C.P.C. to set aside the order dated 06-08-1993 contending that the judgment was made under Order 17 Rule 2, and therefore, the application filed under Order 13 Rule 9 C.P.C. is maintainable.

(3.) The learned Subordinate Judge, Ongole, without going into the merits of the application whether any grounds are made out for considering the said application to set aside the order or not, but only considered the legal contention that the application under Order 9 Rule 13 is not maintainable as the defendant was not set ex parte and it was not an ex parte order and that the order was passed under Order 17 Rule 3 C.P.C. as the Counsel was present. Even if the Counsel is present and the party is not present, the Court cannot proceed under Order 17 Rule 3 C.P.C.-but as per Order 17 Rule 3 (a) the Court shall proceed under Rule 2 of Order 17 alone.